Finality, Guidance Documents, and San Francisco’s Challenge to a Guidance Repeal, by Alisa Tiwari, Ryan Yeh, and Christine Kwon

San Francisco City Attorney Dennis Herrera filed a lawsuit[i] on April 5, 2018, challenging U.S. Attorney General Jeff Sessions’s repeal of six Department of Justice (DOJ) civil rights guidance documents. The lawsuit argues that Sessions rescinded these civil rights protections for marginalized communities without meaningful explanation, in violation of the Administrative Procedure Act (APA).

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In December 2017, Sessions rescinded twenty-five DOJ guidance documents, most of which were aimed at protecting the poor, immigrants, people of color, and people with disabilities. The rescission announcement did not offer any particularized justifications for withdrawing each document and instead stated that the documents were “unnecessary, inconsistent with existing law, or otherwise improper.” San Francisco’s lawsuit identifies six significant civil rights guidance documents that Sessions repealed. These documents include directions to:

state and local governments on following the Supreme Court ruling in Olmstead v. L.C., 527 U.S. 581 (1999), which requires options for people with disabilities to live and work within their communities;

state and local governments to avoid jailing people because they cannot afford fines and fees;

DOJ grant recipients, such as juvenile probation departments, to ensure non-discrimination when issuing fines or fees to juvenile offenders;

local governments to comply with the Fair Housing Act by not treating groups of people with disabilities less favorably than similar groups without disabilities;

employers to stop discriminating against individuals on account of their national origin; and

employers to conduct citizen documentation audits in the same manner for every employee.

The lawsuit alleges that the repeal of these documents is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A) because Sessions provided no meaningful explanation for their withdrawal. San Francisco seeks to void the rescission of these documents and reinstate them.

This case is worth following because it raises questions about the reviewability of the rescission of guidance documents. Guidance documents are typically nonbinding agency statements of general applicability and future effect. They can announce a policy by, for example, explaining how an agency will enforce a statute or regulation and exercise its broad enforcement discretion; or state an interpretative rule, which advises the public of an agency’s construction of the statutes and rules that it administers.

But it is unclear how courts deal with challenges to guidance documents on their face, as opposed to challenges to their application in specific adjudicatory or enforcement proceedings. In particular, which—if any— guidance documents can satisfy the APA’s finality requirement for pre-enforcement judicial review remains an open issue.

The APA extends judicial review only to “final agency action.” 5 U.S.C. § 704. Finality is generally assessed using the Supreme Court’s two-prong test in Bennett v. Spear, which requires final agency action to (1) “mark the consummation of the agency’s decision-making process,” and (2) “be one by which rights or obligations have been determined, or from which legal consequences will flow.” 520 U.S. 154, 177-78 (1997).

Guidance documents typically satisfy the first prong of Bennett’s finality test; however, courts often interpret the “legal consequences” prong as barring judicial review. This is due to these documents’ nonbinding or advisory nature. Guidance does not create new legal rights or obligations, and its legal consequences are generally more attenuated.

Indeed, in grappling with this issue, the D.C. Circuit has maintained a restrictive approach to pre-enforcement review of guidance documents. For example, in National Mining Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014), the circuit court analyzed the problem using the APA’s three categories for agency action: legislative rules, interpretive rules, and general statements of policy. The court observed that “legislative rules and sometimes even interpretive rules may be subject to pre-enforcement judicial review, but general statements of policy are not.” Id. One year later, in Ass’n of Flight Attendants-CWA v. Huerta, the court narrowed its approach, concluding that neither statements of policy nor interpretive rules are final agency actions. 785 F.3d 710, 717 (D.C. Cir. 2015) (“The guidance offered . . . reflects nothing more than a statement of agency policy or an interpretive rule . . . [and] is therefore unreviewable.”).

This categorical definition of final agency action—in which an action must have the force of law to determine “rights or obligations” or to produce “legal consequences” under Bennett—impedes the review of guidance documents.

The Supreme Court’s recent decision in U.S. Army Corps of Engineers v. Hawkes Co., however, may offer justification for a less strict standard governing the reviewability of guidance documents. 136 S. Ct. 1807 (2016) (interpreting the Bennett finality test). In that case, the Court further explained the meaning of “direct and appreciable legal consequences.” Id. at 1814 (quoting Bennett, 520 U.S. at 178). In doing so, it emphasizes a “pragmatic” approach for finality, which focuses on significant practical consequences of a challenged agency action, such as warnings to regulated bodies regarding the risks of incurring criminal penalties. Id. at 1815. The implications of Hawkes are uncertain and complex but certainly of interest for guidance review. For helpful discussion, see William Funk, Final Agency Action After Hawkes, 11 N.Y.U. J.L. & Liberty 285 (2017).

San Francisco’s case is complicated by the fact that the challenge to Sessions’s rescission of six civil rights documents steps beyond the question of whether or which guidance documents can receive judicial review. Instead, it urges judicial oversight over a guidance repeal. Thus, as the case unfolds, it may offer interesting dialogue on an unsettled and continuing debate.

[i]City and County of San Francisco v. Jefferson B. Sessions III et al., Case No. 3:18-cv-02068, was filed in the United States District Court for the Northern District of California.

Alisa Tiwari and Ryan Yeh are students in the San Francisco Affirmative Litigation Project (SFALP), a clinical partnership between Yale Law School and the San Francisco City Attorney’s Office. Christine Kwon is the SFALP Fellow and Lecturer in Law at Yale Law School.